The purpose of the sex offenders registration scheme

1. The purpose of the Sex Offenders Registration Act 2004 (Vic) should be amended as follows:

The purpose of the legislation is to protect children against sexual abuse from people who have been found guilty of sexually abusing children.

2. Part 5 of the Sex Offenders Registration Act 2004 (Vic), concerning child-related employment, should be removed from that Act and integrated with the Working with Children Act 2005 (Vic).

3. The Sex Offenders Registration Act 2004 (Vic) should outline the way it seeks to achieve the revised purpose, including by:

(a) providing for the registration of offenders who have been found guilty of committing sexual offences against children and who pose a risk of committing further sexual offences against children

(b) requiring registered sex offenders to inform police of their whereabouts and other specified personal information in order to facilitate the investigation and prosecution of any future offences that registered offenders may commit

(c) requiring registered sex offenders to report specified contact with children to the police in order to enable protective action to be taken should the children be at risk of harm

(d) permitting the disclosure of some information about registered sex offenders to agencies and individuals in order to protect children from harm

(e) permitting the Magistrates’ Court or the Children’s Court to make a child protection prohibition order that restricts the activities of a registered sex offender

(f) supporting the rehabilitation of those registered sex offenders who seek assistance

(g) complementing the protective mechanisms provided for in the Children, Youth and Families Act 2005 (Vic), the Working with Children Act 2005 (Vic) and the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic)

(h) recognising the reporting obligations imposed by the registration schemes in other jurisdictions

(i) providing for monitoring and review of the operations of the sex offenders registration scheme and of this Act in order to assess whether the purpose is being achieved.

Strengthening the scheme by sharpening its focus—Selecting who is on the Register

4. A person should be included in the Sex Offenders Register only by order of a court. The current system of automatic inclusion of adult offenders following a finding of guilt for an offence listed in schedule 1 or 2 of the Act should be discontinued.

5. The Class 1 and Class 2 offences currently listed in schedules 1 and 2 of the Sex Offenders Registration Act 2004 (Vic) should be replaced with the offences that are set out in Appendix D of this report and which have been sorted into three categories: 1, 2 and 3.

6. A person would be eligible for inclusion in the Sex Offenders Register by court order following a finding of guilt for an offence in Category 1, 2 or 3 as set out in Appendix D of this report.

7. It should no longer be possible for a court to order that a person found guilty of a sexual offence against an adult be included in the Sex Offenders Register. Schedules 3 and 4 of the Act should be repealed.

8. A court should be required to make a registration order in respect of a person found guilty of a Category 1 offence unless that person satisfies the court on the balance of probabilities that:

the age difference between the person and the complainant is not significant and the complainant was at least 14 years old at the time of the offence, and

the conduct would not have been a sexual offence but for the ages of the persons involved, and

(a) no useful protective purpose is served by making a registration order.

9. A court should be required to make a registration order in respect of a person found guilty of a Category 2 offence unless that person satisfies the court on the balance of probabilities that making an order would serve no useful protective purpose.

In considering whether to make an order, the court should be required to consider a risk assessment report from a psychiatrist or psychologist with expertise in assessing an offender’s risk of committing further sexual offences against children unless there are exceptional circumstances that cause a report to be unavailable or unnecessary.

10. A court should be required to make a registration order for a person found guilty of a Category 3 offence if it is satisfied on the balance of probabilities that it is necessary to do so to protect children from the risk of harm from sexual abuse.

The prosecution should bear the burden of proving that a registration order should be made for a person found guilty of a Category 3 offence.

In considering whether to make an order, the court should be required to consider a risk assessment report from a psychiatrist or psychologist with expertise in assessing an offender’s risk of committing further sexual offences against children unless there are exceptional circumstances that cause a report to be unavailable or unnecessary.

11. The Sex Offenders Registration Act 2004 (Vic) should provide that, if an adult offender is found guilty of offences in more than one category, including any offences committed as a child, the test when determining whether to make a registration order should be that of the highest category.

12. If an offender who has been found guilty of offences in more than one category does not meet the test of the most serious applicable category, the court should be permitted to consider the test for the next category if different facts and circumstances arise in relation to that offending.

Different facts and circumstances may include:

(a) a different complainant

(b) offending that is not incidental to the first category of offending.

13. The Children’s Court should not make a registration order in respect of a person who is sentenced for a Category 1, 2 or 3 offence that they committed and were found guilty of as a child, unless it is satisfied that making an order would serve a useful protective purpose.

In considering whether to make a registration order, the Children’s Court should be required to:

(1) consider a risk assessment report from a forensic psychiatrist or psychologist, and

(2) take into account:

(a) the nature and circumstances of the offence(s)

(b) any prior findings of guilt in the Criminal Division of the Children’s Court or orders made by the Family Division of the Children’s Court in relation to the person

(c) the capacity of the person to understand and meet the requirements of a registration order

(d) whether the person is currently subject to any other orders that provide supervision or guidance to the person, and any orders of the Family Division of the Children’s Court

(e) the availability of supports to the person in the community

(f) whether the person can be placed on another order or program which could minimise the risk of committing a Category 1, 2 or 3 offence

(g) the desirability of subjecting the young person to the least invasive regime of court orders necessary, and

(h) section 362(1) of the Children, Youth and Families Act 2005 (Vic), so far as it is relevant.

14. The Sex Offenders Registration Act 2004 (Vic) should provide that, if a person is found guilty as an adult of a Category 1, 2 or 3 offence committed as a child, the court should deal with that person as an adult when determining whether to make a registration order.

15. A court should be permitted to decline to make a registration order in respect of any person found guilty of any offence at any time if that person satisfies the court on the balance of probabilities that:

(1) the person would be unable to comply with the reporting obligations due to physical or cognitive impairment, or

(2) the offence occurred a long time ago, and

(a) it appears to have been an isolated event, and

(b) no useful protective purpose is served by making a registration order.

16. The Sex Offenders Registration Act 2004 (Vic) should state that all registration orders are to be treated as sentencing orders for the purposes of appeal rights only and may be appealed pursuant to the usual sentencing appeal procedures.

Refining the reporting obligations

17. The Sex Offenders Registration Act 2004 (Vic) should be amended to allow a court to impose any of the following conditions, in addition to the standard reporting obligations, when making a sex offender registration order for a person found guilty of a Category 1, 2 or 3 offence committed as an adult:

(a) A requirement to report in person more frequently than as prescribed in the Act.

(b) Where the court is satisfied that the person has a cognitive disability or mental illness, a requirement that the person must be accompanied by an independent third person, assigned by the Office of the Public Advocate, when making a report in person.

(c) A requirement to attend and participate in rehabilitation programs that provide behavioural guidance and assist with integration into the community.

(d) Authorising the presence of a delegate of the Secretary of the Department of Human Services in her capacity as a protective intervener when a person makes a child contact report to a delegate of the Chief Commissioner of Police.

18. The Office of the Public Advocate should be funded to expand the independent third person program so that it can better assist registered offenders who have a cognitive disability or mental illness in complying with their reporting obligations.

19. The Sex Offenders Registration Act 2004 (Vic) should be amended to enable the court to modify the reporting conditions and obligations imposed on offenders who are under the age of 18, as appropriate in the offender’s circumstances.

20. A registration order in respect of a person found guilty of a Category 1 or Category 2 offence should be of five years duration. A registration order in respect of a person found guilty of a Category 3 offence should be of three years duration.

21. It should be possible for the Chief Commissioner of Police to apply to a court for an extension of a registration order. There should be no limit to the number of times that a registration order can be extended. The following procedures should apply when seeking an extension:

(a) The Chief Commissioner should be permitted to apply to a court to extend the registration order for a further period of five or three years (as the case may be) at any time before the order expires.

(b) The burden of proof in an extension application should rest with the Chief Commissioner.

(c) The court should extend the order if it finds on the balance of probabilities that it is necessary to do so to protect children from the risk of harm.

(d) In determining an extension application, the court should be required to consider a risk assessment report from a psychologist or psychiatrist with expertise in assessing an offender’s risk of committing further sexual offences against children.

(e) If a court decides to extend the period of a registration order it should be able to include any of the conditions that could have been included in the original order.

22. The Sex Offenders Registration Act 2004 (Vic) should state that when a registration order expires, or is revoked or terminated by a court, the person who was subject to the order is no longer a registered sex offender.

23. Interstate registrants who move to Victoria should continue to be required to report for the period for which they would have been required to report in the jurisdiction in which they were placed on a sex offenders register, regardless of whether the offence for which they were registered is a registrable offence in Victoria and the duration of reporting requirements under Victorian law.

24. Reporting obligations should be suspended if the registered sex offender is subject to a supervision order (including an interim order) under the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic).

25. Reporting obligations should continue to be suspended if the registered sex offender is in government custody. The definition of ‘government custody’ in the Sex Offenders Registration Act 2004 (Vic) should be updated and expanded to include all forms of government custody.

26. The Chief Commissioner of Police should be permitted to suspend the reporting obligations of a registered sex offender for a period of up to 12 months if the Chief Commissioner is satisfied that the offender is no longer able to comply with those obligations due to physical or cognitive impairment.

27. A registered sex offender who unsuccessfully applies to the Chief Commissioner of Police for the suspension of reporting obligations due to physical or cognitive impairment should be permitted to seek a review of the Chief Commissioner’s decision in the court that made the registration order.

28. Whenever a person’s reporting obligations are suspended because the person is:

(a) in government custody, or

(b) subject to a supervision order under the Serious Sex Offenders (Supervision and Detention) Act 2009 (Vic), or

(c) no longer able to comply with their reporting obligations due to physical or cognitive impairment,

time on the registration order should continue to run during the period of suspension.

29. The offences of furnishing false or misleading information and failing to comply with reporting obligations should be combined into a single summary offence. Penalty: level 7 imprisonment (two years maximum) or a level 7 fine (240 penalty units maximum) or both.

30. If a member of the police force believes, on reasonable grounds, that a registered sex offender has:

(a) failed to comply with their reporting obligations without a reasonable excuse, or

the member of the police force should be permitted to enter and search any premises where they believe the registered sex offender to be.

Reportable contact with children

31. Registered sex offenders should be required to report the names, ages and addresses of any children with whom they have ‘contact’, and the means of contacting those children.

32. The Sex Offenders Registration Act 2004 (Vic) should define ‘contact’ with a child or children for these purposes as:

(a) any form of physical contact, including physical proximity or touching, or

(b) any form of oral communication, including face-to-face, by telephone or over the internet, or

(c) any form of written communication, including electronic communication,

in circumstances where the registered sex offender is:

(a) supervising or caring for a child or children, or

(b) visiting or residing at a dwelling where a child or children are present, including staying overnight, or

(c) exchanging contact details with a child or children, or

(d) attempting to befriend a child or children.

33. Registered sex offenders should be required to make a child contact report when their reporting obligations commence, annually, and when any information about their contact with children changes.

34. Registered sex offenders should be required to:

(a) within one day of the change, notify the police of any changes to information about their contact with children, and

(b) within seven days of the change, provide a written child contact report to the police in person.

35. The child contact report should be required to be made in the form jointly devised by the Secretary of the Department of Human Services and the Chief Commissioner of Police, in consultation with other relevant agencies, including Victoria Legal Aid and the Public Advocate.

Child protection prohibition orders

36. The Sex Offenders Registration Act 2004 (Vic) should be amended to permit the Chief Commissioner of Police to apply to the Magistrates’ Court or the Children’s Court for a child protection prohibition order in respect of a registered sex offender.

37. The court should be permitted to make a child protection prohibition order in respect of a registered sex offender if:

(a) having regard to the nature and pattern of the registered sex offender’s conduct, the court is satisfied on the balance of probabilities that they pose an unacceptable risk to the sexual safety of one or more children or children generally, and

(b) making the order will reduce that risk.

38. In determining whether to make a child protection prohibition order, the court should be required to consider the following factors:

(a) relevant findings of guilt for sexual offences involving children

(b) how long ago those offences were committed

(c) whether the nature and pattern of behaviour that the registered sex offender is currently engaging in is similar to behaviour which was preparatory to previous, relevant sexual offences involving children

(d) the conditions of the registered sex offender’s sex offender registration order

(e) any other matters that the court considers relevant.

39. In addition to the factors referred to in Recommendation 38, if the Children’s Court is considering whether to make a child protection prohibition order in respect of a registered sex offender who is a child, the Children’s Court should be required to consider:

(a) the desirability of the child being supported to gain access to appropriate educational services and health services

(b) the desirability of allowing the education, training or employment of the child to continue without interruption

(c) the desirability of minimising disruption to the child and the importance of maintaining social networks and support which may be lost if the child were required to leave their place of residence, and

(d) section 362(1) of the Children, Youth and Families Act 2005 (Vic), so far as it is relevant.

40. The Children’s Court should only be permitted to make a child protection prohibition order in respect of a registered sex offender who is a child if it is satisfied that:

(a) all other reasonably appropriate means of managing the conduct of the child have been considered before the order was sought, and

(b) the child will have appropriate alternative accommodation and appropriate care and supervision.

41. A child protection prohibition order should be able to prohibit the registered sex offender from:

(a) associating with or contacting specified persons

(b) being in specified locations

(c) engaging in specified behaviour, and/or

(d) engaging in specified employment.

42. The maximum duration of a child protection prohibition order should be five years for adult registered sex offenders and two years for registered sex offenders who are under the age of 18. The duration of a child protection prohibition order should not exceed the period for which the sex offender registration order applies.

43. Child protection prohibition orders should be able to be made with the consent of the Chief Commissioner of Police and the registered sex offender.

44. The court should be permitted to make an interim child protection prohibition order in the absence of the registered sex offender if the court is satisfied, on the balance of probabilities, that an interim order is necessary to ensure the sexual safety of a child or children. If the court makes an interim child protection prohibition order, it should be required to ensure that a hearing is listed for a decision about the final order as soon as practicable.

45. A court should be permitted to make an order restricting or prohibiting the publication of any information that might lead to the identification of a registered sex offender against whom a child protection prohibition order is sought or made.

46. The Sex Offenders Registration Act 2004 (Vic) should include a provision recognising child protection prohibition orders made in other states and territories.

47. If a child protection prohibition order, whether interim or final, has been made against a registered sex offender, the registrar of the court should be required to give the registered sex offender an explanation of the order.

48. If a registered sex offender against whom a child protection prohibition order has been made has been served with a copy of the order and the order has been explained to them, it should be an offence for the registered sex offender to contravene the order. Penalty: level 7 imprisonment (two years maximum) or a level 7 fine (240 penalty units maximum) or both.

49. If a member of the police force believes, on reasonable grounds, that a registered sex offender against whom a child protection prohibition order has been made is present at certain premises, they should be permitted to enter and search those premises without warrant if the member of the police force:

(a) reasonably believes that the person is on the premises in contravention of a child protection prohibition order, or

(b) reasonably believes that the person is on the premises and engaging in particular conduct in contravention of a child protection prohibition order, or

(c) has the express or implied consent of an occupier to do so.

50. The Sex Offenders Registration Act 2004 (Vic) should set out the procedure for appealing against a decision made in relation to a child protection prohibition order.

51. The Victorian Attorney-General should request that the Commonwealth Attorney-General consider amendments to the Family Law Act 1975 (Cth) that would treat child protection prohibition orders in the same way as family violence orders for the purposes of dealing with any conflict between orders made under Commonwealth and Victorian law.

Information sharing

52. The Chief Commissioner of Police should be permitted to disclose information from the Sex Offenders Register to the CrimTrac agency where necessary for the purpose of alerting law enforcement agencies in other jurisdictions that a registered sex offender has left, or has reported an intention to leave, Victoria either temporarily or indefinitely.

53. The Minister for Police should request the Commonwealth Attorney-General to:

(a) take steps to provide a statutory basis for the CrimTrac agency that establishes independent audit, investigation and complaints-handling mechanisms, and sanctions for misuse of the information it holds

(b) bring the CrimTrac agency within the jurisdiction of the Australian Commission for Law Enforcement Integrity, as recommended by the Commonwealth Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity in July 2011.

54. The Chief Commissioner of Police should be permitted to provide the Secretary of the Department of Human Services with a copy of the ‘child contact report’ form submitted by any registered sex offender where the information in the report identifies a particular child or children.

55. The Chief Commissioner of Police and the Secretary of the Department of Human Services should be authorised to exchange information they hold about a registered sex offender when the Secretary is investigating any contact between that offender and a particular child or children.

56. The Children, Youth and Families Act 2005 (Vic) should be amended to provide that information obtained by the Secretary of the Department of Human Services about a particular child from a child contact report or from the Chief Commissioner of Police when exercising the powers to share information with the Secretary of the Department of Human Services should be deemed a report to the Secretary under section 28 of the Children, Youth and Families Act 2005 (Vic) about the wellbeing of a child.

57. The Children, Youth and Families Act 2005 (Vic) should be amended to give the Secretary of the Department of Human Services and the Chief Commissioner of Police the power to authorise officers of a designated rank or grade to disclose to a parent or carer of a child who is having contact with a registered sex offender:

(a) that the person is a registered sex offender

(b) details of the offending that led to registration of that person, and

(c) the duration and the conditions of registration.

The Sex Offenders Registration Act 2004 (Vic) should be amended to permit such disclosures made under the Children, Youth and Families Act 2005 (Vic).

58. The designated officers should be permitted to make a disclosure only if they believe, on reasonable grounds, that disclosure of the information to a parent or carer is necessary to ensure the safety and wellbeing of the child.

59. The Children, Youth and Families Act 2005 (Vic) should provide that it is an offence for:

(a) a person to make a disclosure of this kind without having been authorised to do so, or

(b) a designated officer to make a disclosure of this kind that is not in accordance with the relevant provisions.

60. The Children, Youth and Families Act 2005 (Vic) should provide that a designated officer who intends to make a disclosure to a parent or carer must make all reasonable efforts to notify the registered sex offender prior to making that disclosure unless the designated officer believes on reasonable grounds that to do so would endanger the life or safety of any person.

61. The Children, Youth and Families Act 2005 (Vic) should be amended to codify the existing Ministerial Authority that permits Corrections Victoria to provide risk summary reports and assessment reports to the Department of Human Services.

62. The Children, Youth and Families Act 2005 (Vic) should authorise the Secretary of the Department of Justice to disclose risk summary reports or assessment reports in relation to a registered sex offender where the Secretary of the Department of Human Services has requested the information because the Secretary of the Department of Human Services holds concerns about the risks posed to a particular child or children by that registered sex offender.

63. The Secretaries of the Departments of Human Services and Justice should develop protocols identifying the reports that can be disclosed and establishing procedures to ensure the speedy provision of relevant information.

Accountability and review

64. The compliance monitoring currently undertaken by the Director, Police Integrity should be extended to include compliance with Part 3 of the Sex Offenders Registration Act 2004 (Vic).

65. Compliance monitoring reports to the Minister by the Director, Police Integrity (or any agency to which the compliance monitoring function is transferred) should be required to be tabled in Parliament.

66. The Chief Commissioner of Police should be required to report to the Minister for Police data about the operation of the registration scheme, current as at the end of the financial year, within three months of the end of the financial year. The Minister should be required to table the report within 14 days of receiving it.

67. The data in the Chief Commissioner’s report to the Minister for Police on the operation of the scheme should include information about:

(a) the number of registered offenders in total, and those added during the past financial year, by category of offence and length of reporting period

(b) the number of prosecutions during the financial year for offences under the Act, by offence

(c) the number of registered offenders who were sentenced for a subsequent Category 1, 2 or 3 offence during the financial year

(d) the number of special conditions on registration orders; extensions of registration orders; and child protection prohibition orders made during the year

(e) any other statistical information about the operation of the scheme as determined by the Minister.

68. The Minister for Police should cause an independent review of the operation and effectiveness of the Sex Offenders Registration Act 2004 (Vic) to be conducted as soon as practicable seven years after the proposed revised scheme commences, and every five years thereafter. The report should be tabled in Parliament.

69. The Minister for Police should propose to the Ministerial Council on Policing and Emergency Management—Police that an appropriate body or individual researchers be engaged to conduct longitudinal research into the effect of Australia’s sex offender registration schemes on recidivism.

Transitional arrangements

70. The Sex Offenders Registration Act 2004 (Vic) should establish a Sex Offenders Registration Review Panel. The Panel should comprise a retired judge, a health professional with experience in the treatment and management of child sex offenders, and at least one other person with significant experience in making decisions about the management of offenders.

71. The role of the Sex Offenders Registration Review Panel should be to review all registrations under the Sex Offenders Registration Act 2004 (Vic) prior to the amendments.

72. The Sex Offenders Registration Review Panel should be permitted to terminate the registration of any person, other than an interstate or corresponding registrable offender, who was registered for an offence that is no longer a registrable offence in Victoria.

73. The Panel should be permitted to suspend the reporting obligations of any person who would be permitted to seek suspension of their reporting obligations under the new registration scheme due to physical or cognitive impairment.

74. The Sex Offenders Registration Review Panel should not be permitted to terminate an existing registration for an offence that is a Category 1 offence under the new registration scheme unless:

(a) an exception would apply under the new registration scheme, or

(b) the offender was a child at the time of the finding of guilt for the Category 1 offence and the Panel is satisfied that no useful protective purpose is served by the registration continuing.

75. The Sex Offenders Registration Panel should be permitted to terminate an existing registration for:

(a) an offence that is a Category 2 or 3 offence under the new registration scheme, where a finding of guilt was made when the offender was an adult, or

(b) an offence that is a Category 2 or 3 offence under the new registration scheme, where a finding of guilt was made when the offender was a child,

if it is satisfied that no useful protective purpose is served by the registration continuing.

76. The Sex Offenders Registration Review Panel should be permitted to reduce the reporting period of a registered sex offender under the existing scheme so that it corresponds with the reporting period accorded to the same offence under the new provisions.

77. The Sex Offenders Registration Review Panel should be permitted to impose any of the conditions provided for in the new registration scheme if it is satisfied that this would reduce the risk of the registered sex offender committing a Category 1, 2 or 3 offence during the period for which the order would apply.

78. The Sex Offenders Registration Review Panel should be permitted to make decisions favourable to the registered sex offender without a hearing, but in any other circumstances the offender should have a right to be heard by the Panel before any decision that might be adverse to that person’s interests is made. The Chief Commissioner of Police should have a right to be heard by the Panel in such instances in order to represent the public interest.

79. The Chief Commissioner of Police and the registered sex offender should have the right to review any decision of the Panel in the court in which the offender was found guilty of the offences that led to inclusion in the Sex Offenders Register.